Rhode Island Senate Bill 2156

Summary

Rhode Island Senate Bill 2156 would make it illegal for a retailer to sell, rent or permit another person to sell or rent a video game rated M to anyone under 17 years old or a video game rated AO to anyone under 18. The bill would also make it illegal for a sales clerk to knowingly or intentionally sell or rent a “violent” or “sexually explicit” video game to anyone under 18.

Neither the term “violent” nor “sexually explicit” is defined in the bill or by reference. A violation is subject to up to a year in jail, a $1,000 fine or both.

Status

The bill died in the Senate Committee on Judiciary.

Analysis

Numerous court decisions have created a significant body of case law that firmly establishes the principles that video games are protected speech, and that speech with violent themes or images is fully protected by the First Amendment and may not be banned or restricted either for minors or adults.

With regards to the bill’s restriction on “sexually explicit” video games, it is almost certainly unconstitutionally overbroad. Though minors do not enjoy the protection of the First Amendment to the same extent as adults, the U.S. Supreme Court has ruled that they are entitled to a significant measure of protection. Governments may restrict minors access to some sexually explicit speech, but it is a narrow range of material determined by the three-prong Miller/Ginsberg test. The bill does not include any of the prongs of this test, either by reference or in the bill itself.

Using ratings to determine what can or cannot be sold or lent to minors is also suspect. Though voluntary ratings exist to help parents determine what is appropriate for their children, government enforcement of an existing rating system would likely be a violation of the First Amendment. Courts have found unconstitutional similar laws that use an industry’s voluntary rating systems to restrict access for minors.